Melancon v. I. M. C. Drilling Mud, 9368

• Decision Date: 10 July 1973
• Docket Number: No. 9368,9368
• Citation: 282 So.2d 532
• Parties: Theodore C. MELANCON v. I.M.C. DRILLING MUD et al.
• Court: Court of Appeal of Louisiana — District of US

Page 532

282 So.2d 532

Theodore C. MELANCON v. I.M.C. DRILLING MUD et al.

No. 9368.

Court of Appeal of Louisiana, First Circuit.

July 10, 1973.

Rehearing Denied Aug. 23, 1973.

Writs Refused Oct. 19, 1973.

C. Alan Lasseigne, John L. Lanier and John F. Pugh, Thibodaux, for appellant.

Donald L. King, New Orleans, for appellees.

Before SARTAIN, BLANCHE and WATSON, JJ.

BLANCHE, Judge.

Plaintiff, Theodore C. Melancon, Jr., filed suit seeking recover under the Jones Act (46 U.S.C., Section 688) and the General Maritime Law for injuries which he sustained on May 14, 1967, while aboard the vessel IMCO DRILLER. The IMCO DRILLER was owned by the defendant, I.M.C. Drilling Mud, Division of International Minerals and Chemical Corporation, and insured by the defendant, Liberty Mutual Insurance Company. Recovery under the Jones Act was sought on the basis of the negligence of the defendant-employer-shipowner, and recovery under the General Maritime Law was sought on the basis of the unseaworthiness of the vessel. The accident occurred on navigable waters in Terrebonne Parish, Louisiana, at a time when plaintiff, as captain of the vessel, and others were attempting to unload heavy mud cans from the deck of the vessel to an oil rig.

The trial court rendered judgment in favor of the defendant dismissing plaintiff's claim and plaintiff has appealed. Essentially, the principal issue on appeal is whether the plaintiff sustained the burden of proving negligence and/or unseaworthiness. Related to this issue is the question of whether the trial judge committed error in permitting the defendant to cross-examine one of its own employees.

We have reviewed the evidence and are of the opinion that the following facts are established by a preponderance of the evidence.

The mission of the IMCO DRILLER was to transport drilling water, drilling mud and other supplies to the rig Jubilee located approximately five miles out in the Gulf of Mexico. The plaintiff as captain of the vessel received this request on the evening of May 13. During the late evening hours of that day personnel of the defendant at its dock in Dulac loaded the vessel with fifty cans of drilling mud. Each can was four feet square by six feet in height and weighted approximately five thousand pounds, and the cans were loaded in rows of approximately nine cans each on the deck. The proper way to secure the mud cans was to fasten chains and binders to each row of cans. Only three pieces of chain were used to secure the entire cargo of mud cans. The captain had the responsibility for loading the vessel and properly securing its cargo. The captain could require the vessel to be reloaded if it was improperly loaded and he could refuse to move the vessel until it was properly loaded. If there were insufficient chains and binders aboard to secure the mud cans, the captain had the authority to order them at supply houses in the area that were open twenty-four hours per day. The captain did not supervise the loading of the vessel, as the loading operation was conducted during the late evening and early morning hours while the captain was asleep. After leaving the defendant's dock at Dulac, plaintiff then proceeded to the Union Oil Company dock where he loaded aboard some loose cargo. Thereafter, he proceeded on his way into the Gulf of Mexico and upon entering the Gulf the vessel encountered rough seas. Waves estimated by witnesses ranged from five to eight feet high. It was the captain's responsibility to determine if the seas were too rough for the safety of the crew and its cargo, and it was his decision whether to proceed on his mission or return to sheltered waters or lay anchor and wait until the seas were calm enough to accomplish his mission of delivering the vessel's cargo. While proceeding in the Gulf, the cargo of mud cans had shifted on three or four occasions and the captain had ordered his chief engineer, Alvin Collins, Jr., to shift the ballast in order to overcome the list occasioned by the shifting cargo. This testimony was elicited from Alvin Collins, Jr., the engineer, though denied by Captain Melancon. Upon arrival at the rig, the rig personnel were not ready to accept the vessel's cargo, and the IMCO DRILLER lay anchor and stood by for approximately two hours with its bow headed into the seas. Upon being informed that the rig would take the cargo, the captain was required to put the stern of the IMCO DRILLER against the west side of the rig because of the location of the cranes on the rig used to unload the vessel, thus placing his vessel broadside to the heavy seas. The unloading operation was participated in by the ship's crew and two of the rig's crew. After unloading the loose cargo and approximately two of the mud cans, plaintiff went out on the deck to help secure a mud can which had shifted and was in danger of falling into an opening on the starboard side of the vessel. While attempting to secure this mud can, other mud cans began to shift on the deck and plaintiff was crushed by them against the side of the vessel and was severely injured. Subsequently, the IMCO DRILLER capsized and sank.

The defendant sought to recover $213,147.80 in damages from the plaintiff on the ground that his negligence as master and captain caused the vessel to sink. This reconventional demand was dismissed during trial and is no longer an issue.

Our appellate review of a case brought under the Jones Act and the General Maritime Law is governed by Rule 52(a) of the Federal Rules of Civil Procedure. Although Louisiana courts have the constitutional authority (Section 29 of Article 7 of the Louisiana Constitution) to review both the law and the facts of a case, they may not under federal law and jurisprudence disturb the findings of the trial judge on the merits in such cases unless the findings of the trial judge are clearly erroneous.

The most widely-quoted definition of clear error is found in United States v. United States Gypsum Company, 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746 (1948):

'A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'

WAS THE IMCO DRILLER UNSEAWORTHY?

With the foregoing scope of review in mind, we now turn to the evidence regarding the unseaworthiness vel non of the vessel IMCO DRILLER.

The test of whether or not a vessel or its equipment is seaworthy lies in the answer to the question of whether the ship or its appurtenances are reasonably fit for her intended service. Robichaux v. Kerr McGee Oil Industries, Inc., 317 F.Supp. 587 (W.D.La.1970).

The plaintiff contends that the failure of the trial judge to find the vessel unseaworthy for the reason that there were not sufficient claims and binders on board to secure the cargo is contrary to the evidence and clearly erroneous. As related above, the IMCO DRILLER was used primarily to transport cargo the defendant's facilities, and chains and binders were necessary and proper appurtenances to secure such cargo. The failure to have such equipment on board to secure and protect the cargo and the ship's personnel would, in our opinion, render the vessel unseaworthy.

Our review of the evidence reveals the following concerning the presence of chains on board the IMCO DRILLER. Captain Melancon testified that there were no such chains aboard the vessel. (Tr. of Sept. 14--15, 1970, Vol. I, pp. 145, 146, 147) Alvin Collins, Jr., the engineer aboard the DRILLER, testified that he did not see any chains on the boat and again that he did not remember any at all. (Tr. of Sept. 14--15, 1970, Vol. I, p. 168) He further testified that even though his duties as an engineer did not require a concern for whetheer chains were on board, he looked for chains with the rest of the crew and did not see any personally. Thus, the evidence establishes that a search was made for the chains and none were found.

Two other members of the alternate crew on the DRILLER testified regarding the chains, Joseph C. Galjour, a deckhand, and Paul Chauvin, an engineer, both of whom had only served in the crew for a period of one week prior to the accident. Mr. Galjour, in response to questions concerning the chains, testified about the chains which secured the bulk mud tanks and were welded to the deck of the vessel . He knew of no other chains aboard. (Tr. of June 1, 1971, Vol. I, p. 85) Mr. Paul Chauvin's testimony to the same effect was stipulated.

The testimony most favorable to the defendant concerning the presence of chains on the vessel came from Alvin Collins, Jr., captain of the sister ship of the DRILLER, the IMCO EXPLORER. His testimony was that ten or twelve chains and binders were aboard his vessel and were removed to the DRILLER for the purpose of securing mud cans which the DRILLER was about to transport on a run from Berwick to Cameron. He also testified that the chains and binders were never returned to his vessel. (Tr. of June 1, 1971, Vol, I, p. 28) The removal of these chains and binders, as noted above, was occasioned by the initial trip of the IMCO DRILLER when it was to transport fifty cans of drilling mud from Berwick to Cameron, and as the DRILLER had been newly commissioned no chains and binders were aboard to secure her cargo.

As explained by John Fuzzette, the marine manager for defendant, for the sake of expediency he had ordered the transfer of the chains .

Captain C. J. Collins, the alternate captain of the DRILLER, testified concerning the trip from Berwick to Cameron and verified that chains were brought aboard the DRILLER from the EXPLORER. He also testified the chains were not removed and to the best of his knowledge they were aboard when the crew changed on Tuesday, the week before the accident.

Considering that the chains were transferred from the EXPLORER to the DRILLER in February of 1967, approximately two or three months...